1.Between
February and September of 1994, the Inter-American Commission on Human Rights,
the “Commission,” received nine petitions against the Federal Republic of
Brazil, “Brazil” or the “State of Brazil”,alleging violations committed by military police in the state of São
Paulo. The petitions allege violations of rights guaranteed in Article I (right
to life, liberty and personal security), XVIII (right to a fair trial) and XXIV
(right of petition), of the American Declaration of the Rights and Duties of
Man, the “Declaration”, and in articles 8 (right to a fair trial) and 25
(right to judicial protection) of the American Convention on Human Rights, the
“Convention”, and of Article 1(1) thereof (obligation to respect and ensure
the rights recognized in the Convention). After processing these cases
individually, the Commission decided to combine the cases with a view to
preparing a single report. After due analysis, the Commission decided to declare
both cases admissible.

CASE 11.407 (Clarival Xavier Coutrim)

I.BACKGROUND

2.In
September 6, 1994, the Commission received a petition according to which, on
April 20, 1982, Clarival Xavier Coutrim, a construction worker, aged 22, was
shot to death in the eastern sector of Sao Paulo by state military police
oficers Julio Cesar Passos da Silva, Nelson de Freitas Nascimento Filho, Rodolfo
Cosin Filho, Hermes Simplício da Silva, Celso de Castilho, and Miguel Portos
Neto, .

3.A
military police inquiry was instituted on August 24, 1982, which concluded that
"there is evidence of the commission of a crime" by police officers,
but also that "there is evidence that would suggest that their conduct was
lawful on the grounds that they acted in the line of duty and in
self-defense."On February 28,
1983, the military prosecutor argued that the case should be filed on the
grounds of insufficient evidence to indict, an argument that was accepted by the
judge hearing the case. On May 9, 1983, however, the military prosecutor
requested that the case be reopened for review, and immediately proposed that
new evidence be heard and that the suspects be taken into preventive custody.

4.Following
protracted proceedings involving successive schedulings and postponements of
hearings, the third military court set the policemen's trial for May 2, 1991.The trial date was rescheduled several times, to February 25, 1992,
September 3, 1992, September 30, 1993 and September 11, 1994.As of the date of the petition, and more than twelve years after the
events occurred, no verdict has been handed down in this case.

II.PROCEEDINGS BEFORE THE COMMISSION

5.The
Commission received the petition in September 1994 and forwarded it to the
Government of Brazil, which presented its reply on May 30, 1995, where it
reported that:as a result of the inquiry opened to investigate the death of
Clarival Xavier Coutrim, Case No. 19,930/82 was underway in the third military
court of the state of São Paulo; military police officers Julio Cesar Passos da
Silva, Nelson de Freitas Nascimento Filho, Rodolfo Cosin Filho, Hermes Simplício
da Silva, Celso de Castilho and Miguel Portes Neto were the defendants.

6.The
Government added that the military prosecutor had asked that the case be filed
and then asked that it be reopened when new evidence surfaced; the trial had
been repeatedly postponed for various reasons, but was scheduled for June 6;
finally, the remedies of domestic law had not been exhausted.On June 26, 1995, the Commission received additional information from the
Government of Brazil to the effect that the trial hearing had been rescheduled
for that same day.

7.On
August 16, 1995, the Commission received the petitioner's observations regarding
the Government's reply. They stated that the trial hearing scheduled for June 6
had been rescheduled to June 20, which was when it was finally held and resulted
in the conviction of four of the indicted military police officers:Rodolfo Cosin Filho, Celso de Castilho, Miguel Portas Neto and Hermes
Simplício da Silva, who were sentenced to 12 years in prison.The first three were allowed to remain free pending the appeal (the last
was a fugitive from justice).The
other two police officers indicted -Julio Cesar Passos da Silva and Nelson de
Freitas Nascimento Filho- were unanimously acquitted for lack of evidence.

8.On
September 20, 1995, the Commission sent the pertinent parts of the petitioner's
observations to the Government, giving it 30 days to present its final
observations.

9.On
October 23, the Commission received additional information from the petitioner
to the effect that the defense and the prosecution had both filed appeals and
that the Military High Court was to rule on them within an unspecified time
period.The petitioner attached
copies of the trial proceedings.

10.On
November 20, 1995, the Commission again requested the Government's final
observations and asked that it make specific reference to the following:the reasons why the police officers sentenced to 12 years in prison were
still free and the legal grounds for allowing them to remain at liberty; the
reasons why the trial hearing was not held until 13 years after the crime was
committed and the legal grounds for this; if the internal remedies had not been
exhausted, evidence of where the proceedings stood as of that date, both with
reference to the convicted military police and those who were acquitted, and any
other relevant documentary evidence, including the legal provisions that apply
to Brazilian military criminal proceedings and to the remedies under domestic
law.

11.On
November 15, 1995, the Commission received the Brazilian Government's reply,
reporting that, since two of the six accused had been acquitted, the military
judicial authorities had appealed the sentences of the other four to 12 years in
prison for aggravated homicide.

12.In
February 1996, the petitioner reported that no date had as yet been set for the
ruling on the appeals filed by the defense on behalf of the four convicted
police officers, and by the prosecution challenging the acquittal of the other
two policemen.

13.On April
22, 1996, the Commission reiterated the request it had made of the Government on
November 20. In September 1996,
another note was sent to the Government of Brazil with the same request.On November 6, 1996, the Commission informed the Government
that if no reply was forthcoming within 30 days, it would consider the
observations made by the Government on November 15, 1995 to be its final
observations.

III.CONSIDERATIONS REGARDING ADMISSIBILITY

14.Given
that the verdict acknowledged that the police shot the victim, that the latter
had not committed and was not about to commit any unlawful act, and that he was
unarmed and defenseless and had not resisted police authority, the fact that the
individuals responsible for the crime, despite their conviction, were still not
in prison 13 years after the crime was committed, may constitute human rights
violations, which will be analyzed in due course.The Commission will now examine the formal requirements for admitting the
petition.

15.Article
46 of the Convention spells our the requirements for a petition to be admitted:

a.that
the remedies under domestic law have been pursued and exhausted in accordance
with generally recognized principles of international law;

b.that
the petition or communication is lodged within a period of six months from the
date on which the party alleging violation of his rights was notified of the
final judgment;

c.that
the subject of the petition or communication is not pending in another
international proceeding for settlement; and

d.that,
in the case of Article 44, the petition contains the name, nationality,
profession, domicile, and signature of the person or persons or of the legal
representative of the entity lodging the petition.

16.With
regard to exhaustion of domestic remedies, on February 11, 1996, the petitioner
reported that the appeals filed by the defense and by the prosecution had still
not been decided by the Military High Court and that no date had been set for
the ruling, thus allowing the convicted police officers to remain at liberty.For its part, in May 1995 the Government alleged a failure to
exhaust the remedies under domestic law, "since the additional phases of
the proceedings required by law to convict and sentence those eventually found
guilty, had not yet concluded."

17.Article
46(2)(c) of the Convention stipulates that the provisions of paragraphs (1)(a)
(exhaustion of the remedies under domestic law) and (1)(b) (deadline for
presenting petitions) do not apply when there has been an unwarranted delay in
rendering a final judgment under the aforementioned remedies.The same is set
forth in Article 37(2)(c), of the Regulations of the Commission.[1]

18.The
petitioner alleged that the trial was held 13 years after the crime was
committed and that as of October 1995, the convicted parties were still free,
since the appeals filed by the defense and by the prosecution had not been
decided.In its last note to the
Commission, dated November 1995, the Government confirmed this information and
did not reply to the requests made in November 1995 and again in April and
September 1996.The Commission
believes that a final judgment is long overdue and grants the exception to the
rule requiring exhaustion of the remedies under domestic law, according to
Articles 46(2)(c) of the Convention and 37(2)(c) of its Regulations.

19.The
petition was lodged in September 1994, twelve years after the victim was
murdered; no trial had yet been held.That
trial finally took place in July 1995.The
most recent information from the petitioner, received in February 1996, alleged
that the military police officers, although convicted, were at liberty, as the
appeals filed had still not been decided. The Commission finds that the
exception provided for in Article 46(2)(c) of the Convention applies, inasmuch
as the petition was lodged within the reasonable time period provided for in
Article 38(2) of the Commission's Regulations, which says:

In the cicumstances set forth in Article 37 (2) of these Regulations, the
deadline for presentation of a petition to the Commission shall be within a
reasonable period of time, in the Commission´s judgment, as from the date on
which the alleged violation of rights occurred, considering the circumstances of
each specific case.

20.The
Commission knows of no other similar body that is presently examining this case
nor does the Government claim such knowledge. The petition has also complied
with the formal requirements set forth in Article 44.

CASE 11.406 (Celso Bonfim de Lima)

IV.BACKGROUND

21.The
Commission received a petition lodged in September 1994 stating that Celso
Bonfim de Lima, a sales clerk, aged 18, was shot by military police officer
Aurino Tavares da Silva on February 26, 1983, in the city of São Paulo; he was
left paralyzed.

22.The
police officer was charged on March 13, 1984, for attempted aggravated homicide
(Case No. 20,800/84). On June 29, 1994, ten years after the crime was committed,
the police officer was tried after the charge was reduced from attempted murder
to grievous bodily harm. The police officer was sentenced to two years in
prison, but the sentence was suspended, with no special conditions.The victim filed and won a suit for damages against the state of São
Paulo (case No. 432/87).That
decision was upheld by the São Paulo Tribunal of Justice.

23.The
petitioners allege that the military justice system was slow to act, that the
penalty was light for the crime committed, and that the police officer did not
spend a single day in prison.It
asked that the Brazilian State be condemned for violating articles 4, 5 and 8 of
the American Convention on Human Rights and articles XVIII and XXIV of the
American Declaration.

V.PROCEEDINGS BEFORE THE COMMISSION

24.The
Commission received the petition in September 1994 and the Government presented
its reply on May 30, 1995. It argued that in 1994 the military police officer
had been sentenced to two years in prison and that the State was going to
indemnify the victim. The Government stated that the ruling ordering that
damages be paid was being executed.

25.On
August 16, 1995, the Commission received the petitioner's observations, which
pointed out that the person convicted had not been punished in accordance with
the judicial mandate; and that by the statute of limitations the State's
punitive authority had elapsed in the period between the criminal act and actual
conviction.The police officer never went to jail and is still a member
of the state military police force.The
lower-court decision regarding indemnization was upheld by the Military High
Court.

26.On
November 16, 1995, the Commission sent the petitioner's observations to the
Government so that it might make its final observations within a period of 30
days.The Commission asked that it
specifically address the following: the reasons why the conviction was handed
down several years after the crime and the legal grounds for it; the reasons why
the charge of attempted murder on which the police officer was indicted in Case
No. 20,800/84 was dropped and the legal grounds for reducing the charge.

27.The
Commission also requested the Government to explain how Brazilian military law
operates as regards the period in which liability to punishment applies; the
reasons why the military police officer who was indicted and supposedly
convicted never served his sentence and the legal grounds for it; a copy of the
verdict convicting the military police officer, and any other documentary proof
that it considered pertinent or were related to the petitioner's allegations
that articles 5 and 4 of the Convention were violated.

28.On
January 31, 1996, the Commission received the Government's final observations,
where it replied that:the
proceedings followed the procedures and rules established in the Code of
Military Penal Procedures; that the charge was downgraded to grievous bodily
harm because the Military High Court reasoned that the situation described in
Article 31 of the Military Penal Code obtained in this case because the
defendant desisted from his initial conduct and had fired only one of several
bullets in his weapon.

29.The
Government added that the appeal filed by the military prosecutor seeking to
maintain the conviction on the charge recorded in the indictment was denied. It
explained that the statute of limitations was one ground for extinction of
liability to punishment under military law and that it is referred to under
Article 123.IV of the Military Penal Code; that the rules governing expiry of
liability to punishment are set forth in articles 124 to 133 of that code, which
covers both prescription of criminal proceedings and execution of sentence; that
the rules for computing prescription are set forth in Article 125 of the Code.It also attached documents containing legal doctrine on the subject.

30.The
Government argued that the Permanent Council of Justice of the third military
court granted the defendant a conditional suspended sentence because it found
that he met the requirements established in Article 48 of the Military Penal
Code.In June 1994, that ruling was upheld by the São Paulo State
Military High Court, which found that liability to punishment had lapsed
"because the prescription occurred with respect to a sanction that had
materialized", in accordance with articles 123.IV and 125 of the Military
Penal Code.The Government attached
copies of the bill of indictment brought by the prosecutor with the 3rd military
court of São Paulo, of the conviction, of the grounds the military prosecutor
invoked to appeal the ruling, and the judgment by the judges on the São Paulo
State Military High Court which refused to grant the appeal.

31.On
February 20, 1996, the Government's final observations were sent to the
petitioner.That same day the Commission sent the Government a note
advising it that the statutory procedures in the instant case had concluded.On April 19, the Commission received the petitioner's final observations,
in which he confirmed all the information theretofore reported and asked that
the Commission issue a report on the case.

VI.FRIENDLY
SETTLEMENT

32.In June
1996, the Commission sent a note to the Government and to the petitioner placing
itself at their disposal with a view to reaching a friendly settlement in the
instant case, pursuant to articles 48(1)(f) of the American Convention on Human
Rights and 45(1) of its Regulations. The Commission has not received a reply.

VII.CONSIDERATIONS
REGARDING ADMISSIBILITY

33.The fact
the verdict acknowledged that the police officer shot the victim, that the
latter had neither committed nor was about to commit any illegal act, that he
was unarmed and had not resisted police authority, and the fact that the
responsible party was given a light sentence, which was then considered to have
prescribed so that the defendant served not one day in prison, may be
characteristic of possible violations of human rights, which will be examined in
due course.The Commission will now examine the formal requirements for
admitting a petition.

34.Article
46 of the Convention, cited above, sets forth the requirements that must be met
before a petition can be admitted. As regards exhaustion of remedies under
domestic law, the petitioner reported that the appeal filed by the military
public prosecutor seeking an amended sentence so that the military policeofficer would receive a harsher sentence was denied by the Military High
Court, which on June 7, 1994, ruled that liability to punishment had lapsed by
virtue of the statute of limitations.This
left the defendant absolutely free and there was no other remedy to pursue.For its part, at no time did the Government claim that the remedies under
domestic law had not been exhausted.The
Commission finds that the remedies were exhausted.

35.The
petition was presented on September 6, 1994, two months after the court of last
instance handed down its decision.It
was, therefore, received within a period of six months from the date on which
the party alleging violation of his rights was notified of the final judgment.

36.The
subject of the petition is not pending in another international proceeding for
settlement.The Commission knows of no other similar body that is
presently examining this case nor does the Government claim such knowledge. The
petitioner has also satisfied the formal requirements of Article 44.

CASE 11.416 (Marcos Almeida Ferreira)

VIII.BACKGROUND

37.In
September 1994, the Commission received a petition stating that on the morning
of August 31, 1989, on the east side of São Paulo, Marcos Almeida Ferreira,
aged 18, was shot on his way to a bakery by military police officer Elcio
Vitoriano.The shooting left the
victim paralyzed.

38.In
October 1991, the 4th military prosecutor's office indicted the military police
officer on charges of willful and malicious grievous bodily harm.On the date of the indictment, the police officer's trial was set for
March 1995.However, according to
the petition, given the delaying tactics that military courts used in similar
cases, the petitioner feared that this crime would go unpunished since the
liability to punishment of the State violating a fundamental human right could
prescribe.In the petition, the
petitioner reported that the victim sued the State for damages.The lower court ruled partially in the plaintiff's favor. The petitioner
enclosed documents in support of his petition.

IX.PROCEEDINGS
BEFORE THE COMMISSION

39.The
Commission received the petition in September and forwarded it to the Government
of Brazil in December 1994.The
Government presented its reply, dated June 15, 1995, which was sent by fax on
September 12, 1995.It reported
that as a result of the investigation to ascertain responsibility for the attack
on Marcos Almeida, Case No. 41,028/90 was being heard in the fourth military
court of São Paulo; that on March 27, 1995, the defendant was convicted and
sentenced to three years in prison, and in May 1995 the case had come up before
the Court Judge for execution of sentence.

4O.In
October 1995 the petitioner informed the Commission of the trial and its
outcome.In November 1995, the
Commission forwarded the pertinent parts of the Government's reply to the
petitioner, so that the latter might make observations.In January 1996, the Commission received the petitioner's observations,
which stated that the trial took place on the first appointed date, that the
military police officer was sentenced, even though there was ample evidence to
justify a stiffer sentence, to only three years in prison and was free pending
an appeal; that the case was with the Military High Court, where a ruling on the
appeal was pending; and that these procedures and sentence illustrated the bias
of the military courts.

41.In
February, April and September 1996, and on two later occasions,the petitioner's
observations were sent and reiterated to the Government, which failed to reply.

X.CONSIDERATIONS REGARDING ADMISSIBILITY

42.Inasmuch
as the verdict acknowledged that the police officer shot the victim, who had not
committed any unlawful act, was not about to and was unarmed, the fact that the
guilty party was given such a light sentence and was not taken into custody may
constitute possible human rights violations, which will be examined when the
merits of the case are analyzed.The
Commission will now examine the formal requirements for admitting a petition.

43.Article
46 of the Convention, cited above, establishes the requirements that a petition
must meet to be admitted. In January 1996, the petitioner reported that the
military police officer had been convicted on March 27, 1995, six years after
the fact.He was sentenced to only
three years in prison and was free pending an appeal, despite ample evidence
that would have justified a stiffer sentence.As of that time, the case was with the Military High Court for a ruling
on the appeal.

44.In its
reply and final communication, dated June 1995, the Government confirmed that
the trial took place on March 27, 1995, and that on May 8 the case was still
with the military judge advocate (CHECK), awaiting execution of sentence.It did not claim a failure to exhaust the remedies under domestic law.The Government did not reply to the Commission's requests of February 22,
1996, which were reiterated in April and September of that year.

45.Article
46 (2)(c) of the Convention, stipulates that the provisions of paragraphs (1)(a)
(exhaustion of the remedies under domestic law) and (1)(b) (deadline for lodging
a petition) shall not apply when there has been an unwarranted delay in
rendering judgment under the aforementioned remedies. The same is stated by
Article 37(2)(c) of the Regulations of the Commission.[2]

46.The
petitioner alleged that it took six years for a court ruling to come about, that
the defendant was given a light sentence, was not taken into custody and was
free pending the appellate court's ruling.The most recent information from the petitioner and corroborated by the
Government is that almost one year after the lower-court ruling there had been
no final decision in the case and that the convicted person was still at
liberty.The Commission considers that there has been an unwarranted
delay in the final verdict and grants the exception to the rule requiring
exhaustion of domestic remedies, according to Articles 46(2)(c) of the
Convencion and 37(2)(c) of its Regulations.

47.The most
recent communication from the petitioner, dated January 1996, reported that the
case was still with the Military High Court for a ruling on the appeal.Justice has been delayed.The Commission considers that the exception provided for in Article
46(2)(c) of the Convention also applies and that the petition was lodged within
the reasonable time period stipulated in Article 38(2) of its Regulations[3].

48.The
Commission knows of no other similar body that is presently examining this case
nor does the Government claim such knowledge.The petitioner satisfied the formal requirements of Article 44 of the
Convention.

CASE 11.413 (Delton Gomes da Mota)

XI.BACKGROUND

49.The
Commission received a petition filed in September 1994 alleging that Delton
Gomes da Mota, aged 20, a student and office assistant, was killed by military
police officers Gilson Lopes da Silva and Maurício Correa da Silva, on the
north side of the city of São Paulo, on March 14, 1985.

50.In
October 1985, the third military prosecutor's office indicted the two military
police officers on charges of aggravated homicide (Case No. 25,122.85-3). Almost
seven years after the indictment, trial was set for August 20, 1992, and then
successively postponed for October 29, 1992, September 9, 1993, and November 24,
1994. The petitioners alleged that
judging by other cases of proceedings in the military courts, there was reason
to believe that no trial would be held on the most recent date set, thereby
delaying administration of justice.

51.The
petitioner stressed that the victim's parents, Djalma Gomes Mota and Delba
Francisca da Mota, had not suggested filing suit against the State for damages;
instead, they were making a deposition with a view to obtaining a judicial
verdict establishing that the State was liable under civil law for the events
that culminated in their son's death and declaring the State's obligation to pay
compensation for the injury caused.This
suit was in the fourth District Treasury Court of the State of São Paulo as
Case No. 225/88; all proceedings had been suspended for more than three years
pending the outcome of the military criminal proceedings. The petitioner alleged
the Government of Brazil, on account of that unwarranted delay, was in violation
of articles XVIII and XXIV of the American Declaration of the Rights and Duties
of Man and articles 8(1) and 25 of the American Convention on Human Rights. He
enclosed documents supporting his petition.

XII.PROCEEDINGS
BEFORE THE COMMISSION

52.The
Commission received the petition on September 15, 1994, and, on December 13 of
that year, forwarded the pertinent parts thereof to the Government of Brazil.On June 15, 1995, the Government of Brazil reported that Case 25,122/85
was being heard in the third military court of São Paulo that was conducting
the inquiry into the death of Delton Gomes da Mota.The defendants in the case were military police Lieutenant
Colonel Gilson Lopes da Silva and former military police officer Maurício
Correia do Nascimento.

53.The
Government said that the trial hearing had been postponed several times for
various reasons; the proceedings were now waiting for the defense to complete
pre-trial formalities. The Government argued that the remedies under domestic
law had not been exhausted because the additional phases of the proceedings
required by law to convict and sentence those eventually found guilty of the
crime had not been concluded.

54.On
August 16, the Commission received the petitioner's observations, reporting that
the trial hearing scheduled for May 22, 1995, had been postponed yet a fourth
time, this time until August 25.

55.On
September 20, 1995, the Commission forwarded the petitioner's observations to
the Government.That same day, the
Commission received additional observations from the petitioner concerning the
Government's reply. The petitioner alleged that the Government referred to only
three postponements, when in fact four hearings had been postponed and then
rescheduled, making a total of seven postponed trial dates.

56.The
petitioner again underscored the fact that the murder victim's parents were not
seeking monetary compensation for the death of their son; instead, they had
brought a declaratory action to obtain a court ruling declaring the State
responsible for the victim's death and its obligation to indemnify his
next-of-kin for the moral and material damages that the violation of their
rights caused; that proceedings in their suit had been suspended pending the
final verdict in the defendants' military court case; and that even though the
civil and criminal proceedings were being handled in separate jurisdictions, all
efforts on the part of the attorneys for the victim's parents to get the civil
judge's decision reversed had failed.

57.On
November 16, 1995, the Commission received the Government's reply.Regarding the petitioner's assertion that the successive reschedulings of
the trial date and the promotion of one of the defendants suggested that the
authors of the crime would go unpunished, the Government stated that according
to information that the Council for the Defense of Human Rights obtained from
the São Paulo military court, former military police officer Maurício Correa
do Nascimento had been convicted of the murder of Delton Gomes da Mota; the
court's ruling had already been finalized and the defendant was then serving a
24-year prison sentence.The trial
of the second defendant, military police Lieutenant Colonel Gilson Lopes da
Silva, scheduled for August 25, 1995, was postponed when the defendant failed to
appear.

58.On
November 17, 1995, the Commission forwarded the petitioner's observations to the
Government.On November 28, 1995,
the Commission sent the Government's reply of November 16 to the petitioner.In February 1996, the petitioner sent its reply stating that the
information furnished by the Government to the effect that former military
police officer Maurício Correa do Nascimento was convicted of the victim's
murder was not true; that the 24-year prison sentence mentioned in the
Government-supplied information was handed down in another criminal trial
involving a triple homicide of which the former police officer was convicted in
1986; that in this criminal case, no decision had been handed down; that the
trial had been postponed eight times and was at the time scheduled for March
1996.The petitioner concluded,
therefore, that neither of the two defendants had as yet been tried for the
victim's murder, which had happened over ten years earlier.

59.On April
25, 1996, the Commission reiterated the request it had made of the Government on
November 17, 1995, and forwarded the additional observations received from the
petitioner.On September 23, 1996,
the Commission repeated the request originally made in its note of April 25.In November 1996, the Commission sent a note to the Government
reiterating the content of the notes sent on November 17, 1995, and September
23, 1996.It also advised the
Government that if it had no further observations to add, the observations it
sent on November 14, 1995, would be regarded as the Government's final
observations.

XIII.CONSIDERATIONS
REGARDING ADMISSIBILITY

60.The
facts reported in the petitioner's reconstruction of the crime describe possible
violations of human rights, which will be examined in due course when the merits
of the petition are analyzed. The Commission will now examine the formal
requirements for the petition to be admitted.

61.Article
46 of the Convention, cited above, establishes the requirements that a petition
must meet to be admitted. In the petition, filed on September 6, 1994, the
petitioner reported that nine years after the crime had been committed and
despite the indictments brought, the defendants had not yet been tried, since
the trial had been postponed three times (August 20, 1992, October 29, 1992 and
September 9, 1993); the petitioner feared that the trial scheduled for November
24, 1994, would not be held, thereby delaying justice.

62.In its
reply of June 1995, the Government acknowledged that three scheduled trial
hearings had been postponed, with no date set for another hearing pending the
notifications required by the defense. Finally, it argued that the remedies
under domestic law had not been exhausted since the additional phases of the
process required by law to convict and sentence those eventually found guilty
had not been completed.

63.Article
46 (2)(c)of the Convention states that the provisions of subparagraphs
(1)(a) (exhaustion of the remedies under domestic law) and (1)(b) (deadline for
filing the petition) shall not apply when there has been an unwarranted delay in
rendering judgment under the aforementioned remedies. The same is stated by
Article 37(2)(c), of the Regulations of the Commission.[4]

64.The
petitioner argued that the trial date had been postponed and rescheduled nine
times, constituting a delay in the rendering of justice.The Government acknowledged at least four occasions when the trial was
postponed for one reason or another.The
Commission considers that the trial is long overdue, and the dates for it have
been repeatedly postponed.It
therefore grants the exception to the rule requiring exhaustion of the remedies
under domestic law, according to Articles 46(2)(c) of the Convencion and
37(2)(c) of its Regulations.

65.The
latest information from the petitioner, from February 1996, alleged that even
though more than ten years had passed since the crime, the indicted military
police officers had still not been convicted, which constituted a delay in the
rendering of justice.The
Commission finds that the exception provided for in Article 46(2)(c) of the
Convention applies and that the petition was filed within the reasonable time
period stipulated in Article 38(2) of the Commission's Regulations.[5]

66.The
Commission knows of no other similar body that is presently examining this case
nor does the Government claim such knowledge. The petitioner has also satisfied
the formal requirements of Article 44 of the Convention.

CASE 11.417 (Marcos de Assis Ruben)

XIV.BACKGROUND

67.TheCommission received a petition filed in September 1994, to the effect
that Marcos de Assis Ruben, aged 23, a student and machinery assistant, was
killed by military police officers Orlando Aparecido Garcia, Edison Donizetti
and Waldemar José de Oliveira Tenorio, in São Paulo in March 1988.

68.The
petition states that the police inquiry found that the military police officers
were asked to look into an incident in which an individual had assaulted a girl
"in an attempted rape".When
they arrived on the scene, the police found Marcos de Assis Ruben with a girl
and arrested him for that reason.The
police officers then dismissed the alleged rape victim, who never filed any
complaint.The police took Marcos de Assis Ruben to a secluded place (Tiete
Ecological Park), where he was shot five times in the head, causing encephalic
cranial trauma and death.

69.In May
1988, the third military prosecutor's office charged the police officers with
aggravated homicide, the victims being Marcos de Assis Ruben and more than seven
other people.All the murders were
committed under similar circumstances in March of 1988.The petitioner alleged that the foregoing notwithstanding, more than six
years after the crimes, not even the investigation phase of the proceedings had
been concluded, which meant that these agents of the State who were guilty of
repeated violations were still at liberty. The petitioner alleged that the delay
constituted a violation of articles XVIII and XXIV of the American Declaration
of the Rights and Duties of Man and articles 8 and 25 of the American Convention
on Human Rights.

70.The
petitioner reported that the victim's parents filed suit for damages against the
State in the eighth District Treasury Court of the State of São Paulo: Case No.
491/92.The lower-court ruling was
in the parents' favor and was upheld by the judges on the São Paulo Tribunal of
Justice. The petition was accompanied by supporting documents.

XV.PROCEEDINGS
BEFORE THE COMMISSION

71.The
Commission received the petition in September 1994 and forwarded the pertinent
parts thereof to the Government on December 20 of that year.The Government stated that the Case No. 32,750/88 was being heard in the
3rd military court of São Paulo and was an inquiry into the death of Marcos de
Assis Ruben; the defendants were former military police sergeant Orlando
Aparecido Garcia and former military police soldiers Edson da Silva and Waldemar
J.O. Tenorio; defense witnesses were scheduled to be heard on June 5, 1995; and
the Government would inform the Commission promptly of further developments.

72.The
Commission received the petitioner's observations in January 1996, wherein the
petitioner alleged that:eight
years had passed since the indictment was brought against the military police
officers and no date had as yet been set for the trial.The Government could not, the petitioner argued, claim that the domestic
remedies had not been exhausted.The
petitioner concluded that the exception allowed under Article 37(2)(c) of the
Commission's Regulations applied.

73.In
February, the petitioner's observations were forwarded to the Government, which
was given 30 days in which to send its final observations.The Commission asked that the Government address the petitioner's
allegations, including the exception to the rule requiring exhaustion of
domestic remedies and the delay in the judicial proceedings in Case No.
32,750/88; it also asked the Government to send a copy of the case file and of
the report on the police investigations, and to address the merits of the case
concerning violation of the aforementioned articles.In April and again in September 1996, the Commission again asked the
Government to send its final observations within 30 days.It received no reply.

XVI.CONSIDERATIONS
REGARDING ADMISSIBILITY

74.The
facts recounted in the petition describe possible violations of human rights,
which will be examined when the merits of the petition are discussed in the
corresponding phase of the proceedings.The
Commission will now examine the formal requirements that the petition must meet
to be admitted.

75.Article
46 of the Convention, cited above, establishes the requirements for the petition
to be admitted. In the petition, lodged in September 1994, the petitioner
reported that six years after the fact, not even the investigation phase of the
proceedings had been completed, since the hearings to hear witnesses had been
postponed several times.

76.For its
part, in its reply of June 1995, the Government admitted that the criminal
investigation phase had not yet concluded. It reported that the hearing to hear
the defense witnesses was scheduled for June 5, 1995 and said that that the
remedies under domestic law had not been exhausted since the additional phases
of the proceedings required by law to convict and sentence those eventually
found guilty had not yet concluded.

77.Article
46(2)(c) of the Convention stipulates that the provisions of paragraphs (1)(a)
(exhaustion of domestic remedies) and (1)(b) (deadline for filing the petition)
shall not apply when there has been an unwarranted delay in rendering judgment
under the aforementioned remedies. The same is stated by Article 37(2)(c), of
the Regulations of the Commission.[6]

78.The
petitioner alleged that although six years had elapsed since criminal
investigations had begun, that phase had not concluded due to postponements of
hearings. This meant that the State agents who were the authors of repeated
violations had gone unpunished.The
Government acknowledged that seven years after the crime, the criminal
investigative stage had still not concluded.The Commission considers that the conclusion of the pre-trial phase is
long overdue as it has been delayed by repeated postponements, and therefore
grants the exception to the rule requiring exhaustion of the remedies under
domestic law, according to Articles 46(2)(c) of the Convention and 37(2)(c) of
its Regulations.

79.The most
recent information from the petitioner, dated January 1996, alleged that almost
eight years after the crime, no trial date had as yet been set in the case
against the military police officers.Justice
had been delayed.The Commission
considers that the exception provided for in Article 46(2)(c) of the Convention
applies and that the petition was presented within the reasonable time period
stipulated in Article 38(2) of itsRegulations.[7]

80.The
Commission knows of no other similar body that is presently examining this case
nor does the Government claim such knowledge.The petitioner has also complied with the formal requirements of Article
44 of the Convention.

CASE 11.412 (WANDERLEI GALATI)

XVII.BACKGROUND

81.The
Commission received a petition in September, 1994, to the effect that, wielding
the butt of a revolver, military police officer Ademar Cavalcante Dourado
bludgeoned to death Wanderley Galati, a 28-year-old mechanic, on August 26,
1983, on the north side of the city of São Paulo.

82.The
petition states in response to a minor collision with a military policeman's
car, for which Mr Galati admitted responsibility and offered to pay for, the
military police officer attacked and killed Mr Galati. The petitioner
accompanied the petition with supporting documents.

83.The
military police officer was indicted on December 2, 1983, before the first
military court of the state of São Paulo, and with that Case No. 21,519/83 was
instituted.A series of hearings to hear the prosecution's witnesses were
postponed for a wide variety of reasons.The
first hearing to take testimony was on March 25, 1988, five years after the
crime.The last hearing in the
investigation phase of the proceedings was on May 7, 1991.

84.The
trial was held on October 15, 1991.Even
though there were a number of eye witnesses to the assault, the defendant was
acquitted for lack of evidence.The
verdict was drafted but, almost three years later, had still not been signed by
the military officers who sat on the Permanent Council of Military Justice,
which meant that no appeal could be filed seeking reversal of the unjust
decision. The petitioner alleged that the negligence and slowness of the
military justice system in pronouncing judgment in the cases placed before it
frequently led to impunity. He added that, particularly in the case in question,
the unjustified bias and delays on the part of the military courts constituted
violations of articles XVIII and XXIV of the American Declaration of the Rights
and Duties of Man and articles 8(1) and 25 of the American Convention on Human
Rights.

85.The
mother of the victim sued the state of São Paulo in the second District
Treasury Court (Case 440/88) seeking moral and material damages.The lower-court ruling partially upheld the suit brought by the victim's
mother.The civil appeals court
refused to grant her appeal.

XVIII.PROCEEDINGS
BEFORE THE COMMISSION

86.The
Commission received the petition in September 1994 and forwarded its pertinent
parts to the Government on December 13, 1994, giving it 90 days in which to
present its own observations.The
Government of Brazil requested and was granted three consecutive 30-day
extensions (Article 34(6) of the Commission's Regulations). In June 1995, the
Commission received the Government's response, wherein it stated that:Case No. 21,519/83 was being prosecuted in the first military court of São
Paulo to conduct an inquiry into the death of Wanderley Galati, in which the
accused was military police officer Ademar Cavalcante Dourado.

87.The
Government added that the defendant in the case, military police officer Ademar
Cavalcante Dourado, was unanimously acquitted on October 15, 1991; the ruling
was read and published on March 30, 1995; the case files were with the military
public prosecutor's office pending reception of the grounds justifying the
appeal that had been lodged; the remedies under domestic law had not been
exhausted, since the additional phases of the proceedings that the law requires
to convict and sentence those eventually found guilty had not yet been
completed.

88.In
August 1995, the petitioner replied stating that the March 1995 publication of
the acquittal handed down in October 1991 only proved the inadequate state of
affairs within the São Paulo state military courts, which had taken four years
to draft the sentence, and that there were therefore grounds for concern that
the author of the crime could go unpunished. The case was with the public
prosecutor's office for purposes of filing an appeal against the ruling that
acquitted the defendant on the grounds of insufficient evidence, when there was
ample, solid evidence of the defendant's guilt.

89.On
October 6, 1995, the petitioner repeated its August observations and stressed
that the delay in publishing the verdict confirmed that the military courts were
slow and negligent in prosecuting their cases, with the result that defendants
often went unpunished.The
petitioner said there was no justification for the bias and slowness with which
military courts proceeded. The petitioner also informed that the civil liability
suit brought by the victim's mother against the state was upheld.The State Treasury was appealing the ruling with the Federal Supreme
Court and a decision was still pending.

90.On
September 20 and November 20 1995, respectively, the Commission forwarded the
additional information received from the petitioner to the Government and
requested its final observations. The Commission requested that the Government
state the legal grounds for denying admissibility based on a failure to exhaust
the remedies under domestic law; that it explain the delay in the proceedings in
Case No. 21,519/83, and that it address the merits of the case, specifically the
allegation that the right to life had been violated.

91.On
November 15, 1995, the Government replied that the case files were with the
public prosecutor's office for purposes of filing an appeal against the
defendant's acquittal within the legal time frame.It said that as soon as new information became available it would forward
it to the Commission.

92.On
November 29, 1995, the Commission forwarded the Government's observations to the
petitioner.In February 1996, the
Commission received information from the petitioner confirming the previous
information supplied and clarifying that the files were still with the public
prosecutor's office with a view to filing an appeal against the acquittal of the
defendant accused of killing the victim.

93.On April
25, 1996, the Commission again asked the Government for its final observations,
which were to be presented within a period of 30 days.In July 1996, the Commission received information from the Government to
the effect that in November, the public prosecutor's office had filed an appeal
challenging the verdict of acquittal published in March 1995.It added that the mother of the victim had won her suit in the lower
court for compensation for the moral and material damages caused, a decision
upheld by the higher court.Accordingly,
the Public Treasury would have to pay the mother a pension until the date on
which the victim would have turned 65.

94.On July
16, the Commission informed the Government that with presentation of the final
observations, the statutory processing of this case had concluded.On July 30, 1996, the Commission forwarded the final information received
from the Government to the petitioner and informed the latter that the statutory
processing was completed.In
October 1996, the petitioner reported that it was not getting information on the
proceedings in the military court's records office.

[3]"In the circumstances set forth in Article 37 (2) of these
Regulations, the deadline for presentation of a petition to the Commission
shall be within a reasonable periodo of time, in the Commission´s judgment,
as from the date on which the alleged violation of rights has occurred,
considering the circumstances of each specific case."